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A Comprehensive Guide on The Probate Process

Accomplishing your goals and earning the fruits of your hard work is indeed fulfilling. However, no matter how small or grandiose your assets and properties are, you can’t bring them on your eventual grave.

In these dire moments of a person’s death, officially distributing these assets to the rightful inheritors can prevent misunderstandings and conflicts. This legitimate action can be approved through a document known as the “Last Will and Testament.”

What’s A Will?

A Last Will and Testament, or will, declares what will happen to your possessions, including money, properties, estate, and children, after your death. It’s essential to prepare this document any time that you wish because if there isn’t any official document that you’ve written, the government will have to interfere and divide these assets regardless of your own personal wishes.

What’s A Probate Process?

Whether a decedent has written a will or not, both physical and tangible assets still have to undergo the court’s intervention to make sure that everything is proved to be legal.

This process is called probate, which can commence in two ways:

  • The decedent have prepared an estate or property to probate and have already assigned an executor to fulfill the decedent’s wishes.
  • A close person to the decedent, usually the spouse or adult child, will ask the court to be appointed as the administrator of the decedent’s assets during probate.

Some beneficiaries fear how complicated and time-consuming a probate process is. But, the results of this will eventually pay off. The probate process can be as simple as this comprehensive guide:

Is The Probate Process Always Required?

The laws enclosing the probate process can vary in different countries and states. Holding a probate process depends on factors such as the type of asset or property, how the property is owned, and the state laws. However, the real question that most people might initially ask is: “why is probate necessary if the decedent has already left a will?”

Asking this question is absolutely understandable because some beneficiaries don’t want any probate process at all, mainly because of its legal fees and efforts. Apart from your state laws, there’s no requirement that an estate should automatically undergo probate. Unless the decedent has specifically instructed that no probate should happen, the procedure still has to push through.

Wherever the state or country you’re currently holding the probate, this legal procedure always requires the presence of a probate lawyer – state-licensed attorneys that’ll work hand in hand with the executor or beneficiary to settle the decedent’s affairs. However, if the probate is in a different state where you originally live, it can be confusing where to get a probate lawyer.

For instance, if the probate process will occur in Denver, Colorado, and you live in a different US state, the absolute choice is a Denver probate lawyer than a probate lawyer from your state, because they’re more informed about the state’s laws.

The Will Executor: What Should They Do?

As mentioned earlier, a decedent can personally assign an executor of the will. Now, in case you’ve been chosen as the executor, what should you do?

Being chosen as the executor means that the decedent trusts you to fulfill their death wishes. As an executor, the first thing to remember is to set yourself aside and be honest in accomplishing these tasks. Your role is extremely vital in the probate process and expects that your presence is always required.

Typically, the spouse or child is named as the executor of probate. If the estate is evenly distributed among the decedent’s children, the most financially responsible adult child is usually the executor. But, if all children are still minors, the children’s guardian is chosen.

Surprisingly, executors are usually paid to be executors of the probate because it requires tons of time and effort to become one. They’re provided with compensation when they make out-of-pocket expenses by the state right before the beneficiaries receive their own shares from the will.

Thus, if you’re a beneficiary and assigned executor, you can reap both of these benefits in exchange for your service.

Fulfilling the executor’s roles isn’t a piece of cake, but you should fulfill your duties to the best of your ability. To assist your tasks as an executor, you can do thorough research online and rely on further counsel from a chosen accountant or lawyer.

Last Will and testament document

The Step-By-Step Guide To Probate Process

Because of the necessity and importance of probate, let’s move on to the essential part of this guide: elaborating every step of the probate process.

Here’s a step-by-step guide to a probate process:

  1. Will Authentication

Before taking any legal procedures after the decedent’s death, if they’ve successfully written their Last Will and Testament, the document must be authenticated first. Actually, several state laws advise that the individual in possession of the will should immediately file it with the probate court as soon as possible, marking the beginning of the probate process. Simultaneously, an application to open probate of the decedent’s estate and filing of a death certificate is conducted.

These initial procedures will go to waste if the will itself is invalid. Thus, the probate judge will have to confirm its validity first, usually through a court hearing. In this event, all beneficiaries and heirs will receive the notice of the hearing.

  1. Executor Appointment

As previously elaborated, the executor can be appointed by the decedent, as indicated on the will.

Otherwise, the court will appoint the executor to drive the whole probate process and settle all assets owned by the decedent. Nevertheless, the executor’s duty isn’t mandatory, so the chosen executor can openly decline without any legal consequences.

Subsequently, the assigned executor will be presented with “letters testamentary” or “letters of authority,” which is a document that formally appoints the executor. Also, this letter states that the executor, from now on, will be documented of all actions conducted on behalf of the state.

  1. Bond Posting (Optional)

Depending on the court’s discretion, the executor may have to undergo a bond posting. A probate bond is synonymous with an insurance policy, which compensates for the financial damages of the state in case the executor is guilty of a grave error, either committed in purpose or not. Probate bonds will see to it that the executor will fulfill their duties accordingly.

There are different types of probate bonds, which varies depending on the executor’s duties:

  • Trustee bond
  • Administrator bond
  • Estate of Court bond
  • Executor of Court
  • Personal Representative bond
  • Conservatorship bond
  1. Pinpointing The Decedent’s Possessions

Once appointed, to provide protection during the probate process, the first task of the executor is to locate all the decedent’s existing assets and take possession of these assets.

These assets and properties are emphasized on the will. But, the challenge comes when the decedent chose not to list down hidden assets and tell no one about it, even their children or spouse. If this is so, the executor will have to locate these hidden.

  1. Identifying “Date Of The Death” Of Each Asset

Through account appraisals and statements, the executor will then determine the “date of the death” of every asset that’s part of the probate, or those that have been successfully located and acquired into possession, and write everything in a document. The date of death refers to the value of estate relative to the market value at the time of the decedent’s death.

The executor will need different professionals in identifying the date of the death of every estate asset. The bank officially facilitates bank accounts, but it becomes confusing when it comes to the bond and stocks. Usually, professional bond brokers can offer a hand to the executor.

  1. Locating And Informing The Creditors

Once properties and its values have been identified, the executor should identify and alert the decedent’s creditors about the decedent’s death. These notices are usually published in newspapers, commonly labeled as “legal notices,” to inform unknown creditors that might not have been identified.

Depending on state laws, the creditors, after receiving the notice, have a restricted time to respond and make claims for the decedent’s debts and liabilities. However, the executor can dismiss these claims, as there’s evidence that the claims are invalid.

If the creditor’s claims are proven to be legitimate, the decedent’s debts will be paid using the estate funds, including those amounts spent during the decedent’s illness or accident.

  1. Tax Return Preparation and Arrangement

Consecutively, the executor is assigned, among other tasks, to prepare and file all tax returns due for the decedent’s estate and decedent himself. This income tax return covers the period from January 1, up to the decedent’s death on the present year of death.

If the decedent possesses a joint tax return with their spouse, then the executor and spouse should arrange and sign this tax return. In terms of the assets, the computed date of the death will be filed as the estate’s income tax return.

  1. Estate Distribution To Rightful Beneficiaries

Finally, once the executor, they have accomplished the documents and settlements an executor will then file a petition to the court to allow the distribution of all the decedents left assets to its rightful beneficiaries and heirs, as named in the will. This petition will more likely be approved by the court if the executor has finished accounting every financial transaction of the decedent, which occurred in the probate process.

Owning a property is still prohibited for minors. If minors have been listed as one or few of the beneficiaries, the executor has to set up a trust first to accept possession of these inherited assets that’ll last until the minors have reached legal age.

Key Takeaways

Indeed, the decedent’s legacies continue even after their death, especially those with existing properties and assets passed onto their next generations. After the estate has been distributed rightfully to all beneficiaries, it’s up to them to protect these rentals, residential, commercial properties, assets, and accounts.

Also, the beneficiaries must ensure to fulfill all obligations that the decedent has left, such as the responsibilities of a tenant of owned rental properties. Overall, the probate process has highlighted how legal procedures are significant and helpful in these trying times.

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